Application by the Commissioner of the Australian Federal Police [2015] NSWSC 1269

Supreme Court New South Wales

Medium Neutral Citation: Application by the Commissioner of the Australian Federal Police [2015] NSWSC 1269 Hearing dates: 1 September 2015 Date of orders: 01 September 2015 Decision date: 01 September 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Orders pressed made. Catchwords: PROCEEDS OF CRIME – restraining order – orders pressed made Legislation Cited: Criminal Code (Cth) Proceeds of Crime Act 2002 (Cth) Cases Cited: Commissioner of Australian Federal Police v Naim (Supreme Court (NSW), Hall J, 26 February 2015, unrep) Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff) Representation: Solicitors: R E Skeels (Plaintiff) File Number(s): 2015/24949 Publication restriction: None

Judgment 1. Today, I made orders under s 49 of the Proceeds of Crime Act 2002 (Cth) in respect of the property specified in schedules two and three to the summons commencing these proceedings, namely, the cash amounts of $955 seized from the vehicle of Mr Rahim Naim on 19 February 2014 and the cash amount of $9,800 seized that day from Mr Michalis Arsiotis. 2. While Mr Naim appeared by his solicitor to seek an adjournment of the hearing of the Commissioner's application in respect of the property specified in schedule one to the summons, so that he could make an application for that property to be excluded from the restraining order, he did not oppose the orders sought in respect of schedule two. Mr Arsiotis did not appear to oppose the orders sought by the Commissioner in respect of the property specified in schedule three. 3. In February 2015, when Hall J made restraining and other orders in relation to the cash totalling $A1,067,505 which had been seized, Mr Naim appeared, but Mr Arsiotis did not (see Commissioner of Australian Federal Police v Naim (Supreme Court (NSW), 26 February 2015, unrep)). 4. Then the Commissioner relied on an affidavit affirmed by Ms Hoyes, a Special Member of the Australian Federal Police, as to the circumstances in which the cash the subject of these proceedings came to be seized and why it was under s 400.9 and 400.5A of the Criminal Code (Cth) respectively which Mr Arsiotis and Mr Naim were both charged with offences. 5. The affidavit evidence of Ms Van Lent, a Litigation Assistant, employed by the Australian Federal Police, affirmed on 1 September, established that both Mr Naim and Mr Arsiotis had been given notice of the hearing and the orders which would be sought by the Commissioner under s 49, by correspondence sent to their respective solicitors in June. 6. Under s 49(1) of the Proceeds of Crime Act, if a responsible authority such as the Commissioner applies for an order under the subsection, after a restraining order has been in force for at least 6 months, as it has been in this case, and the Court is satisfied either that the property is the proceeds of one or more indictable or serious offences, or if no application has been made for the property to be excluded from the restraining order (s 49(3)), then the Court is obliged to make an order that the property is forfeited to the Commonwealth. 7. Neither Mr Naim nor Mr Arsiotis contended that the property was not the proceeds of one or more indictable or serious offences and neither have made an application for the property the subject of schedules two and three to be excluded from the restraining order earlier made by Hall J. Accordingly, in all those circumstances, I was satisfied that the Commissioner was entitled to have the orders pressed made. 8. The hearing of the Commissioner's application in respect of the property specified in schedule one, the cash amount of $66,700, also seized from Mr Naim's vehicle on 19 February has been adjourned for hearing on 16 September 2015, so that Mr Naim may have a final opportunity to make an application to have that property excluded from the restraining order.